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tv   [untitled]    December 13, 2012 7:30pm-8:00pm PST

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they parties don't expect to come to you so your request is to continuian to january 20th. . >> excuse me i'm sorry as far as administrative economy it would be wise to kel for the same day february 20th but i'm willing i think i can get this all put together by the next hearing if that is the necessity of the board. it's a lot of work. i need more time. >> i understand. thank you.. >> although normally, i would agree to any request or excuse me of any deputy or attorney to the department of public health before receiving this particular request, i would normally always agree to a professional's
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request for a continuance on the basis of no time to prepare but in these circumstances it's pretty clear to d ph that this is a tactical maneuver and it's intended to defeat the city's jurisdiction to enforce it's suspense of the massage parlor owner. in particular, on december third, prior counsel who had represented the owner consistently throughout the case, submitted. tried to submit supplemental belief briefing raising an argument that the massage parlor was under the state's statute and the pre-exempted on the basis that massage parlor had only certified state massage practitioners in it's employment and that would take it outside of the city jurisdiction and now at the time of the offense there is no doubt, that that was not the case and but it appears
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that this the intervening time, the established ceo health club is trying dominate into compliance with the state scheme and get from under the penalties that the city has assessed against it for the entire week i have been contact contacted repeatly on behalf of ceo health club saying oh, gor the owner just fired her attorney and is asking me to step in and represent her and we really need a delay would you agreea delay and i would say no because this jurisdictional issue is clearly in play. and the initial attempted delay came from her original attorney mr. hall and the second came from bill phases zero who had informed me that he called my boss before calling me to see if he could squeeze out a delay in this case and he declined apparently because the next day i got a called from year-old green saying wanted a
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continuance saying he was going to be the new attorney but when i explained the circumstances of this case to him he decided not to represent her and today i got a request from new counsel for a continuance supposedly on evidence newly dissolved and it's based on a permanent discover in july if there is new evidence it's unclear why it cannot be discovered and entered in tonight's hearing and all of the information should be gathered by now and he is not preclude first degree entering new evidence in possession and he can proceed tonight he should be required to proceed tonight and he should not receive more time to get out from under the city's jurisdiction. . >> ms. kaiser is there anyway is that we can satisfy you with respect to the jurisdictional
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issue that you place voice? i'm not sure what you are asking. >> is there anyway to avoid the concern that you have raised and to the extent i'm not familiar with the legal requirements of the practitioners and therefore, i'm not -- like you are going to have to give us briefing on the jurisdictional issue and how it is that the delay could in fact, i mean if a more plausible circumstances? >> it's arguable. the 60 cities going to dispute that it's jurisdiction to impose a penalty for an act that took place when the practitioner was not state licensed. >> that is removed. the state will argue that. but -- it also d ph will argue that when the are confronted with evidence that this is
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thousand a conforming business under state regulations. >> but after fact after the oches, by here's the thing that gives us pause it's in business and professions code friction 12 subsections 22 and it says no pro vision of any ordinance enacted by a city, county or city and county that is in effect before the effective date of this chafter and it requires a licenses permit or other authorization for compensation will be enforced to an vivid certified as chapter or massage business or massage established establishment that employs or uses only persons solved to this chapter to provide massage. the way that language is drafted that certainly races the reasonable argument that the moment the establishment becomes
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certified the city is deprived of the authority to close the doors of this establishment and that is what need to happen in this case. >> this is a farrell new pro vision of the law and this has not been lit gated. >> are you associated in any way in this case? zero. and as i stated. >> so you are saying that you are not prepare to go forward today? i would try william anything but it's very very difficult the brief is extensive as you know. >> is your answers yes or no. no. >> you are not ready? okay thank you. yes. >> when mr. fantastic yo called me after chris hall to say that chris hall had been let go and appellate had been seeking new counsel and in the end when he determined that i
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was not going to agree to a continuance he said okay, well i guess i'll have to tell chris. not the owner, chris. when i spoke to this attorney today about how he came to be involved in the case whether it was through chris hall he said no it was through bill phases zero and so it may be -- it appears to me based on that chain that even if there is no direct relationship and even if you know, my colleague here has been brought in without his knowledge in a sense, there clearly is a connection between chris hall, bill phases zero and counsel here today. i think that is more evidence of game swingship. >> thank you what is the likely timing of the state certification that you have said think applied for state certification is that what is going on? . >> there is a timing in the state legislation. no --.
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>> i'm sorry i'm hard of hearing. the state certification of the business such that it will fall under state jurisdiction and not the county. >> i don't believe there has been any application to ask for a state certificatenition i believe there is a mix-up some of anymore have state certification and some have the 70's license next year and some have both is my understanding and i think her point that she races is the hearing that like she said, it's arguable and attorneys love to argue. itch i have a question for the city attorney. >> can you explain concisely how bower you're going to loose jurisdiction by us granding a continuance just simply put how are you going to lose jurisdiction. >> first of all, i would not concede that goring do lose jurisdiction but there is going to be a strong argument that arises as seen as the owner
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employs only state certified practitioners she, the moment she does that, she brings herself under the ambient of the state statute and it's the language of that statute that i was reading to you that says then you can no longer enforce a local permanent ppermitting scheme. i understand that but that is not by virtue of us granding a tannance but by interpretation of the law. >> our information and i'll ask inspector walsch to speak to this but she has been in the process of trying to convert her workforce to bring herself within the state regularbations and we know that her counsel tried to submit an additional brief raising this jurisdictional argument less than ten days ago. gentlemen yes, i i understand but i do not see how that is relevant to our point of continuance. >> because if you think that is going on do you have any sense of when that might be
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accomplish accomplishedded? in a week? a month? it's not in our control it's totally within her control. but, you know, to the extent that she is seeking to circumstance um, vent the regulatory procedure that we have had to defend and please coiled chimed keep in mind that a continuance has been granted in the past and now in a week prior to hearing and today suddenly i come in and there is suddenly new counsel and she had ever opportunity to be prepared for this hearing and is there is no reason to sub institute counsel for times in the past week this is pure gams men ship she wants the delay. bell phases zero toll me that. he said you know the reason that i'm call you is to try and get a delay of whatever sort. that is what we want. we want the
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delay. does anyone have any questions? >> no. okay thank you you can sit down for the moment. all of you can sit down and is there any public comment on this item? okay so then commissioners unless you have further questions the question is before you is whether you wish to grant a continuance. >> yeah, i think that apart from the merits of the case that we are not hearing at this particular moment and time is what we need to decide is if there is good cause for a continuance in my mind that is the question and what i'm trying to narrow it too at this point in time and whenever it's advantageousous to have continuous is debatable and an interpretation of the loll that we will have to confront once we actually hear the case but i would canship client to grant a continuance and i would find
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that there is good cause granted that counsel has stated he is not prepared to represent the appellate here and if it makes others feel more comfortable, i would be willing to say that no further continuances will be granted if we decide to vote to grant the continuance. >> i'm of similar mind and i would subject january 16th. i would suggest next week. >> we are not here. i'm -- you know and i think anytime process are used to process are manipulated and in a manner that is inappropriately, i'm troubled by that and i do not have any basis
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to disbelief the representations of the city attorney with respect to just finding any reason for a 38 and if there is a potential argument that is used to the advantage of the appellate, and for that reason a delay is being asked for, i'm st. inclient to grant a continuance. but, i don't have any questions for you right now: but i may be alone here so, that is my views at this moment. normally, i would typically in my own practice and here i would think that a continuance would be warrantied upon retention of new counsel, that is standard,
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in the profession but i'm troubled by some of the representations that have been made today.. >> okay well i would move to grant the continuance based on good cause given the new substitution of counsel and i would move to continue it to january 16th. okay and that would be the whereas continuance granted. are you interested in allowing any additional briefing for. yes. >> how many pages of additional briefing? what do we give 12? >> 12 is the initial allotment yes. i would say six. but it's new counsel but they already
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have briefs. yeah, we can do it in six pages. >> six pages. okay so would that be six pages with unlimited exhibits and the appellate anti-'s submittal will be three thursdays prior and the department submittal one thursday prior that is the normal schedule. >> that doesn't really give much time though does it. the appellate submittal would be due on the 27th. >> okay that is fine. okay so do you all that you understand the board has made a motion if it fast passes the matter would be continued to january 16th with 6 pages of additional briefing allowed and your client's pages would be due three thursdays prior to the hearing and your brief is one day prior to the hearing which, is the 10th of january and
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before we take a vote, i want to ask was there an issue that came up that you need to clarify? yes, they i have compelling evidence of appellate's lack of candor to this tribunal in which she has claimed that she is unable to speak english or understanding proceedings and i think that her untruthfulness in this issue as i can demonstrates bearing directly on the credibility of this request and on the likelihood of gamessen ship behind it and i would like a minute or two to present that evidence to you. are you saying that we don't need translation services is that the point that you are making? >> the point that i'm making is. on credibility. >> yeah -- but is it substance that you are presenting to us indicating that no translation
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services are required and. >> i do believe that,that is the case and the reason i'm offering this is to go to a appellated credibility and to the good fate that she has prepped in front of this body as you consider blue to give her additional time based on her representations that is required here. >> i don't believe that is relevant. sorry, i would agree with commissioner. >> okay. thank you. >> okay so commissioners i would call a roll on that motion and that is to continue this matter to january 16th for the additional briefing as previously described vice president honk,, that is pass on four to one vote and we will have this matter continued to january 16th and so now we will
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move onto item six a six b and six c and six d which will be heard together and 12 d-1 05, six, seven and eight all regarding the property at 530 -- street and by josh snider and dennis steward regard ago protesting thishance of august 20th 2012 to brandon fox to the permit to demolish a building of single residence with one thousand 30 feed feet of ground floor area and protesting thishance of august 20th to a building four story two unit building with 4,015 feet of ground floor area these matters were heard on october 17th 2012 and allowed the commissioner to participate in the if i am vote however two things have changed since the
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board continued these matters for the reason country is that we have commissioner honda joining us and two is that we have the party have engaged on some discussions to try to narrow the issues of dispute and so with the president's consent we can giveth each party a few minutes to address the board. i think we could start perhaps it's best to start with the permit holder in this case since they have alternate plans to propose. that would be good. >> so three minute? >> three minutes precise. commissioners a little blag jay for the permit holder and is we did have a meetings and we thank you for the opportunity to work further with the appellates and we did a revise design initially in front of this hearing that the real problem was with the rather of the of the building and if i can have the overhead on i'll show you again what that looked like.
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one minute. >> i have a disclosure i have spoken's attorney's office and they advise me that i do not have a consistent and i can conflict of interest and the only relationship that i share with brendan fox is that we are in the same industry and the letter was written on behalf of hoe would he and he is employed by zephyr employees and we are all independent and we have six of and is he is not in my office. >> thank you and one other thing, i believe you have had the opportunity to review the video at the prior hearing. yes i did. >> okay mr. blag swrai. if i could have the
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overhead please. commissioners this is the only design and you can see there was a back stair at the rather of the building and this guideline shows the building to the north and there was a bump out to that building. this is the rendering of what the original design would look like and i also just want to point out again, this rather bump now because it's relevant in terms of the design revision and is again, we weren't solved with this and neither were the neighbors and we thought this was the primary concern of neighbors. when we met we did a design revision, the neighbors were primarily kept obviously and wanted the building reduced in height and we thought that the concern was with the rather it's going to have the overhead again please? you can see what we propose was to basically do a step back in the back to
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lower it and to kind-of give the rather a more attractive appearance. we met with mr. breecher and he basically said he kind-of liked the way that we redesigned the back but the real concern is that wanted to lower the height of the building and wanted the building set back further from the street and the rather was not really the major concern and so based on those discussions, we came one a revised section which basically lowers the building in height of 3 feet again, the l o is with the planning code will allow and in salmon color is what really were at the last presentation, we dropped overall height too 3 feet and the height of the building now is 37 feet in terms of what the planning commission allows is 40 feet and we added a bay in the back and
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this bay is not here and it's not permitted and it's drafting a drafting error and it's we did a matching pop out and you can see because of the gray, most of the building beis below grade at the back end with three stories in the back and front and i'm going to show what you the revised elevation looks like and this is the victorian style building and this is the windows to make it taller and give it a more vertical aspect and if i can show you the rather, that will conclude my presentation to you and if you have any questions, i'll be pleased to answer them, but let me show you the rather. and this is the rather of the building and the rendering kind off shows more accurately the top bay, no bay at the third level and little pop out which, is similar to the pop out with the neighbor to the
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north. thank you commissioners. >> thank you. we can here from mr. schneider next.. >> i do have individual plants plans for you to see and pass out ... josh baker snider that you thank you for having us back to the continue ages and the initial agreeable solution and vice president phoning was worried about the bright light issue and so i made a good fate effort to cross that line and strive for compromise and prepare to radios a top story and improve building aesthetic and is unfortunately
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the i consistently found that the probability sponsor was not up front about and misrepresented the changes that were made and to look back at that, i'll point out some of those issues. there were 33 issues and i'll go through them in increasingly order of supports the first is rather of the building is improved and that is acceptable and i thank you for the good work on it the second issue the appearance of the front of the building and there has been no substantive change to the front of the building and i have here side-by-side the only and new plans on the projector and you can see that they look the same we had asked some articulation and there are some minor moves and i see no substantive progress here and the most important issue is the building on the envelope and substantive aggression and the approval is that the height is lower and
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3 feet lower if you took a good look at the plans and with the ruler and calculations it's 2-foot 3-inches lower and you can see it not to include the roof and so i don't know if you can see it in the details here but the original shows the measurement of 39 feet 11-inches and the new one, showses a measurement of they have feet however the measurement of 37 feet is here. and so it's 37 feet 9-inch and is so it's only a 3 feet reduction and 9-inches matters and i'm frustrated that they told us 3 feet and their own plan shows that it's not and furthermore the top floor is increased in length and the superficial appearance of shrinkage and it looks like it got a little smaller and bring up -- let's
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see here we go i'll show the ordinary care first and then you new and so they pushed the building out further over the sidewalk and pushed it back ask so the top increased a little bit and the bottom increased by 6 feet really significant and they left it for me to discover and so after looking at this proposals that their treating ancompromise that i brog good f to them. in which way did it increase towards the back or the personal property. >> the top story was increased towards the back. and then anything on the bottom? >> on the bottom it was also increased towards the back and the personal property a lot to the a little to the front and a lot total back the front is a foot or two it's really small.
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okay thank you. >> mr. stuart? madame chairman, members of the board before i begin my remarks about the project under discussion i want to formally object to commissioner honda participating in the deliberation and voting on the project since his a part of the injury team he has a fiduciary interest in the case and with the plan to demolish the building and convert it into luxury condominium which presumably zephyr will sell and this will be a substantial sales commission and this imposes a conflict of interest for
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commissioner honda and i would like to know the matter that i have to appeal the decision and thank you again first responder the at some point to share with you my continued concerns with regard to the structure sponsor to erect at 530 central and i want to allow during the board's previous report of this issue to reconcile the difference so as to develop a solution and -- available that does not over throw the decisions in the agencies and the courts and with to engage the project sponsors and the last appearance and before this body to respond to our express willingness to modify the original proposal. you will recall please refer to my formal testimony in my previous hears which i believe every has had a chance too hear in the


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